Attorneys steer undocumented clients away from a citizenship path

March 4, 2013

Some immigration attorneys say they are steering most undocumented clients away from a citizenship path created in the name of “family unity” by President Barack Obama’s administration.

“I’m telling most folks to wait and see how the rule is implemented before applying,” veteran Chicago immigration lawyer Royal Berg said.

“Any information the applicant gives to the government can be used against the individual,” Berg added, “and could result in the applicant being deported.”

The Department of Homeland Security laid the path in a rule that took effect Monday. The rule enables eligible undocumented immigrants to receive a “provisional unlawful presence waiver,” known in some quarters as a PUP waiver, before leaving the United States to attend visa interviews at an American consulate in their country of origin.

To qualify for the waiver, according to the department, an applicant must be inadmissible to the United States “only on account of unlawful presence.” The immigrant must also show that going abroad and getting stuck there would create “extreme hardship” for a U.S. citizen spouse or parent.

Since 1996, the federal government generally has required visa applicants to wait 10 years outside the United States if they have spent more than a year in the country without authorization.

The administration proposed the rule last April at the urging of immigrant advocates. After receiving some 4,000 public comments about it, the department published the final version January 3.

Some immigration lawyers see the rule as a potential boon to mixed-status families.

“We’re cautiously optimistic that this will be one way in which families can be reunified more quickly,” said Lisa Koop, managing attorney of the Chicago-based National Immigrant Justice Center, whose clients include many Mexican nationals. “If you get the provisional waiver granted, you can go down to Mexico with some assurance that at least that ground of inadmissibility has been waived and you should be allowed to come back in.”

A statement by U.S. Citizenship and Immigration Services, the DHS agency receiving the applications, says it “does not envision” placing PUP waiver applicants in removal proceedings. But the Obama administration has made no promise that information gleaned from applications will not lead to any deportations.

Chicago immigration attorney Kevin Dixler sees other risks. He said PUP waivers would not ensure that immigrants could return to the United States if they had committed certain crimes in this country or “falsely represented themselves to get a job.”

Berg says he is advising clients to explore other options, including applying for work papers and a deportation reprieve under Deferred Action for Childhood Arrivals, a policy the Obama administration initiated last year. “DACA is safer, quicker and less expensive, and leads to work papers without leaving the country,” Berg said.

DACA has its own downsides for applicants, Koop pointed out. “It’s not permanent,” she said. “It’s a quasi-legal status that they’re in for two years. Whereas, if they go through consular processing, when they come back into the United States they’re lawful permanent residents, which means they have their green card and, in [a few] years, will be eligible to apply for citizenship.”

Among other qualifications for the PUP waiver, an immigrant must be at least 17 years old, must be physically present in the United States, and must not be in deportation proceedings.